The state Supreme Court on Monday reversed a ruling on alleged corruption involving the county’s $102 million settlement with Colonies Partners LP, in November 2006, which prosecutors alleged was tainted by bribery and blackmail.
Staff file photo

Jeff Burum during an arraignment hearing in a San Bernardino Superior Courtroom August 19, 2011.
Staff file photo

SACRAMENTO >> The California Supreme Court has determined that a Rancho Cucamonga developer can be prosecuted for certain alleged bribery offenses in a sweeping corruption case, and that an appellate court erred in determining otherwise.

In a 21-page opinion released Monday, state Supreme Court Justice Marvin R. Baxter wrote that the Fourth District Court of Appeals in Riverside erred in October 2012 when it determined that Rancho Cucamonga developer Jeff Burum could not be accused of aiding and abetting with his alleged co-conspirators in the receipt of bribes because he was the alleged bribe-giver.

“Being the offeror or payor of a bribe does not disqualify that person, as a matter of law, from culpability for participating in a conspiracy to accept the same bribe,” Baxter wrote in his opinion, unanimously affirmed by the Supreme Court’s six other justices.

The Supreme Court also reversed the appellate court’s decision affirming the dismissal of two bribery charges against former San Bernardino County Assistant Assessor and union president Jim Erwin, who stands accused of working as an agent for Burum.

“Because the Court of Appeal exempted Burum from liability on an erroneous legal ground, it follows that the Court of Appeal’s ruling with respect to Erwin, which rested entirely on the ruling with respect to Burum, is similarly vulnerable and must be reversed,” Baxter wrote in the opinion.

The Supreme Court ordered the matter back to the Fourth District Court of Appeals for further review.

Burum, Erwin, former county Supervisor Paul Biane, and Mark Kirk, former chief of staff for Supervisor Gary Ovitt, were indicted in May 2011 and charged with multiple felonies including conspiracy to commit a crime, bribery and misappropriation of public funds. The 29 criminal charges stemmed from a November 2006 legal settlement between the county and Burum’s Rancho Cucamonga investor group Colonies Partners LP. for $102 million. State and local prosecutors say the settlement was tainted by bribery and blackmail.

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“We are pleased with today’s unanimous Supreme Court ruling that clarifies important issues that will benefit prosecutors across the state in their fight against political corruption,” San Bernardino County District Attorney Michael A. Ramos said in a statement. He declined further comment, citing the pending Appellate Court proceedings.

Ramos did say in his statement that prosecutors “look forward to trying this matter in a court of law.”

Burum’s attorney, Stephen Larson, said in a statement that the Supreme Court was “legally required to accept the government’s unfounded and fabricated allegations as true,” but he looked forward to the case being remanded back to San Bernardino Superior Court.

“Today’s decision marks the beginning of the end for this politically motivated prosecution,” Larson said.

Erwin’s attorney, Rajan Maline, said he was frustrated that the matter was bounced back to the appellate court, which he said will further delay things.

“I’m disappointed that we cannot get back to the trial court now,” Maline said. “To say it’s a victory for either side is a fallacy.”

During oral arguments before the Supreme Court on Nov. 5, Burum’s attorney, Deputy Attorney General Melissa Mandel argued that the specific facts and circumstances of the case should determine whether one could be charged with the crimes Burum stands accused.

The state Attorney General’s Office has partnered with the District Attorney’s Office in prosecuting the case.

Larson argued that more than a century of case law has established that a person cannot be charged with being a bribe giver and also aiding and abetting in the receipt of a bribe because the crimes involve different intents.

The Supreme Court disagreed with Larson in its written opinion.

“Although the giver and receiver of a bribe may have different intents, it is not required, as a matter of law, that they must have different intents,” Baxter wrote. “After all, it is well established that an individual may entertain multiple criminal objectives simultaneously.”

Defense attorneys maintain the prosecution was motivated by political ambition. During the first phase of prosecution in February 2010, District Attorney. Ramos and then-Attorney General Jerry Brown held a news conference announcing the charging of Erwin and former Board of Supervisors Chairman and county Assessor Bill Postmus, touting the case as the “biggest corruption scandal in San Bernardino County history, possibly in California.”

It was an election year for both Ramos and Brown. Ramos was re-elected district attorney and Brown was elected governor.

Postmus subsequently entered into a plea agreement with prosecutors, pleading guilty to multiple felonies in connection with the Colonies scandal and a companion corruption case at the Assessor’s Office in which he was accused of using his elected office for political purposes. He admitted to taking a $100,000 bribe from Burum in exchange for his vote approving the settlement, and agreed to testify against the other defendants in exchange for leniency.

State and local prosecutors subsequently impaneled a criminal grand jury, before which Postmus and dozens of other witnesses testified. The indictment was subsequently handed down.

Erwin, a former sheriff’s deputy, is alleged to have engaged in strong-arm tactics including blackmail and extortion to influence Postmus and Biane to get a settlement approved in Colonies’ favor. Kirk is accused of pushing Ovitt to vote in favor of the settlement, which Ovitt ultimately did.

Ovitt was never implicated as a defendant in the case.

Neither county counsel nor outside counsel for the county ratified the settlement agreement, which ended nearly five years of heated legal battle over who was responsible for flood control improvements at a 434-acre residential and commercial development in Upland, Colonies at San Antonio and Colonies Crossroads, respectively.

The development was bankrolled by Colonies Partners and built by Burum, who is also a co-managing partner at Colonies Partners.

Prior to the settlement, two trial court judges issued tentative rulings in Colonies’ favor and another validated the settlement after it was approved.

Within a year of the settlement, Colonies contributed a total of $400,000 to political action committees controlled by the county supervisors who approved the settlement or members of their staffs. The defendants say the “contributions” were transparent, legal and completely above board, but prosecutors allege the PACS were phony and merely used as a smokescreen to conceal the alleged bribes.